To predict whether the ‘Constitution (One Hundred and Twenty Fourth Amendment) Bill, 2019’ will stand the scrutiny in courts would be to take on the task of an astrologer. Yes, a few assumptions may be made on the basis of existing precedents on the subject. It has passed through both Houses of the Parliament with all-party support. Many have indicated that this is cynical vote-bank politics, especially on the eve of an election. Its journey through the courts is likely to be far more bumpy. The big constitutional question will be whether the amendment violates the basic features of the Constitution, democracy, equality, and secularism to name a few.
Economically weaker sections do not constitute a homogenous class and hence an identifiable group making them eligible for reservation. There is hardly any doubt that without a constitutional amendment, the bill would be considered illegal, hence the need for a constitutional amendment which makes “economically weaker sections” who have not hitherto been eligible for reservations, now eligible.
All reservations in public employment for Scheduled Castes and Scheduled Tribes draw their legitimacy from Article 16 (4) which is the only article in the Constitution which uses the word ‘reservation’. Hence, the earliest categories of classes of persons for whom reservations were made were ‘Scheduled Castes’ and ‘Scheduled Tribes’. The history of reservations for them goes back to the pre-independence period where they were described as ‘depressed classes’. Article 16(4) in turn has been interpreted with reference to Article 46 of the Constitution. Being a Directive Principle of State Policy, Article 46 which relates to Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections reads as follows:
‘the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation’.
Now, for the purpose of including economically weaker sections, the Statement of Objects and Reasons of the Bill, reference has been made to Article 46. This indicates that the government would argue that Article 46 enables such reservations for economically weaker sections.
The problem, however, is that it has been interpreted to refer to SC, ST, and Other Backward Classes, in all of which categories caste is a predominant element in “social injustice and backwardness”.
These reservations for economically weaker sections make no reference to caste and hence may not meet the test of Article 46.
Article 15(4) enables the state to ‘make special provision’ for the advancement of the socially and educationally backward classes. For the first time in 1989, the then VP Singh government introduced reservations in employment for OBCs. Courts in India have repeatedly emphasised that neither SCs and STs nor OBCs can be identified solely on the basis of economic criteria. It is for the first time in constitutional history that this bill seeks to make ‘special provisions’ for the economically weaker sections of citizens other than the SC, ST, and OBCs for reservations of initial appointments under the government. The expression ‘economically weaker sections’ have not been defined. However, as per news reports, the government intends to give economic reservations to the ‘general category whose family income is below Rs 8 lakh per annum or own less than 5 acres of land. Also, the person’s residential house should be below 1,000 square feet, and the residential plot should be below 100 yards in a notified municipality area and below 200 yards in a non-notified municipality area.’ There has been much debate whether these criteria could be considered ‘economically weaker sections’ of citizens. But that apart, the issue is more fundamental.
Ranging from the ‘unemployed’ to those who are below the poverty line and ending with a family income of Rs 8 lakh a year, they will all be considered economically weaker sections, making it impossible to say that they belong to a homogenous identifiable group. The question, therefore, becomes: to whom will these 10 percent jobs go? While it is not possible to say who belongs to this newly constituted class of economically weaker sections, it is possible to say who is excluded. Hence, every citizen who is not an SC, ST or OBC will be eligible for the 10 percent quota. The Supreme Court has already said that reservation cannot exceed 50 per cent.
The bill makes no effort to increase the constitutional limit of 50 per cent to 60 per cent. In the circumstances, two situations can arise.
Firstly, that reservations will go up to 60 percent making them clearly unconstitutional. Given that every single measure for reservation in employment has been challenged by the general or unreserved category or ‘forwards’ on the ground that their opportunities are shrinking, further shrinkage of 10 percent from their category is likely to lead to a constitutional crisis.
The alternative, to retain the 50 percent constitutional limit, the reservation for SCs, STs, and OBCs can be reduced to accommodate 10 percent of economically weaker sections. In either case, the government will find itself in a catch-22. The former option is bound to be struck down as unconstitutional, while the latter will be completely unacceptable to SCs, STs, and OBCs.
Certainly, demands will be made by other groups to be considered a homogeneous group, especially women and religious minorities who are discriminated against. They can argue that they form a group recognised by the Constitution in Article 15 and must be given standalone reservations, not horizontal reservation across groups.
Equally importantly, it will also be argued that more than 99 percent of the country is economically weak. The only people left out will be the super-rich.
Finally, we need to address the critical question of equality and equal protection of laws. It has been the consistent argument of the forward classes or general category that they are entitled to equality of opportunity under Article 16(1) which says that there shall be equal opportunity for all matters of employment under the state and which is denied by reservations for SC, ST, and OBC. Ironically, it is the upper castes who will end up challenging this law on the ground that their opportunities have shrunk. A government which claims reservations for those ‘poor’ among the upper caste, if such a category exists at all, will end up finding itself pitted against the upper castes.
The Supreme Court of India has always had an extremely vexed relationship with its understanding of equality. While some judges have taken the view that all reservations—including those for SCs and STs—are an exception to the right to equality, others have held that reservations are a means of attaining equal outcomes for different categories of persons. While SCs have been defined with reference to their historical oppression of untouchability, STs by their geographical exclusion, and OBCs by their social and educational backwardness, it will be for the first time that a ‘class’ will be defined neither on the basis of historical oppression nor on the basis of social and educational backwardness.
Ultimately, the question is how is a class constituted for the purpose of giving reservations. A class can neither be over-inclusive, not under-inclusive. ‘Economically weaker sections’ are likely to fail on this test. While the right of reservation conferred on SCs, STs, and OBCs has passed the test of being group rights, “economically weaker sections” may not pass the test of being a group right. It is likely to put equally placed citizens against each other and favour one against another. This will be argued as a classic case of denial of equality. The consequences of the bill have not been thought through. It is likely to be challenged on the most basic of all rights, the right to equality of law and equal protection of laws.
Poverty is not an immutable characteristic such as race or sex, nor is it stigmatic in the way caste is. It is possible to eradicate poverty with appropriate policy changes. A sustainable and equitable economy needs to be in place with redistribution of income and wealth. The bill does not achieve that purpose.
(The writer is a former Additional Solicitor General of India and the founder of The Leaflet)